33 U.S. Code § 2201 - “Secretary” defined

This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, as amended, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out below and Tables.

Pub. L. 99–662, § 1(a),Nov. 17, 1986, 100 Stat. 4082, provided that: “This Act [enacting this chapter and sections
59n–1,
59v,
59w,
403b,
426n,
426o,
467f to
467n,
555a,
579a,
652,
701b–12,
709b,
988a, and
1414a of this title, sections
460tt of Title
16, Conservation, sections
4461,
4462,
9505, and
9506 of Title
26, Internal Revenue Code, section 483d of former Title 40, Public Buildings, Property, and Works, and sections
1962d–11b and
1962d–20 of Title
42, The Public Health and Welfare, amending sections
409,
414,
415,
426g,
426i,
426j,
426m,
467,
467b,
555,
557,
603a,
610,
701a–1,
701g,
701n,
701r,
701s,
984, and
1804 of this title, section
3036 of Title
10, Armed Forces, sections 460ee and 1002 ofTitle
16, section
4042 of Title
26, sections
1962d–5a,
1962d–5b,
1962d–5d,
1962d–5f, and
1962d–16 of Title
42, sections
390 and
390b of Title 43, Public Lands, and section
1121–1 of Title
46, Appendix, Shipping, repealing sections
1801 and
1802 of this title, enacting provisions set out as notes under this section, sections
426,
426g,
467,
661,
984,
988,
1414a, and
2294 of this title, sections 460d and 1004 ofTitle
16, sections
1,
4042,
4461,
9505, and
9506 of Title
26, sections
1962d–5b,
1962d–20, and
10301 of Title 42, and section
390b of Title
43, and amending provisions set out as a note under section
1962b–3 of Title
42] may be cited as the ‘Water Resources Development Act of 1986’.”

Pub. L. 99–662, title II, § 215,Nov. 17, 1986, 100 Stat. 4109, provided that: “This title [enacting subchapter II of this chapter] may be cited as the ‘Harbor Development and Navigation Improvement Act of 1986’.”

“(a) In General.—Subject to the availability of appropriations, the Secretary [of the Army] shall complete and submit to Congress by the applicable date required the reports that address public safety and enhanced local participation in project delivery described in subsection (b).

“(b) Reports.—The reports referred to in subsection (a) are the reports required under—

“(1) In general.—Subject to subsection (d), if the Secretary fails to provide a report listed under subsection (b) by the date that is 180 days after the applicable date required for that report, $5,000 shall be reprogrammed from the General Expenses account of the civil works program of the Army Corps of Engineers into the account of the division of the Army Corps of Engineers with responsibility for completing that report.

“(2) Subsequent reprogramming.—Subject to subsection (d), for each additional week after the date described in paragraph (1) in which a report described in that paragraph remains uncompleted and unsubmitted to Congress, $5,000 shall be reprogrammed from the General Expenses account of the civil works program of the Army Corps of Engineers into the account of the division of the Secretary of the Army with responsibility for completing that report.

“(d) Limitations.—

“(1) In general.—For each report, the total amounts reprogrammed under subsection (c) shall not exceed, in any fiscal year, $50,000.

“(2) Aggregate limitation.—The total amount reprogrammed under subsection (c) in a fiscal year shall not exceed $200,000.

“(e) No Fault of the Secretary.—Amounts shall not be reprogrammed under subsection (c) if the Secretary certifies in a letter to the applicable committees of Congress that—

“(1) a major modification has been made to the content of the report that requires additional analysis for the Secretary to make a final decision on the report;

“(2) amounts have not been appropriated to the agency under this Act [see Tables for classification] or any other Act to carry out the report; or

“(3) additional information is required from an entity other than the Corps of Engineers and is not available in a timely manner to complete the report by the deadline.

“(f) Limitation.—The Secretary shall not reprogram funds to the General Expenses account of the civil works program of the Corps of Engineers for the loss of the funds.”

“(1) In general.—Not later than 180 days after the date of enactment of this Act [June 10, 2014], the Secretary [of the Army] shall establish and implement a pilot program to evaluate the cost-effectiveness and project delivery efficiency of allowing non-Federal interests to carry out feasibility studies for flood risk management, hurricane and storm damage reduction, aquatic ecosystem restoration, and coastal harbor and channel and inland navigation.

“(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out a feasibility study of 1 or more projects; and

“(C) to evaluate alternatives for the decentralization of the project planning, management, and operational decisionmaking process of the Corps of Engineers.

“(3) Administration.—

“(A) In general.—On the request of a non-Federal interest, the Secretary may enter into an agreement with the non-Federal interest for the non-Federal interest to provide full project management control of a feasibility study for a project for—

“(i) flood risk management;

“(ii) hurricane and storm damage reduction, including levees, floodwalls, flood control channels, and water control structures;

“(iii) coastal harbor and channel and inland navigation; and

“(iv) aquatic ecosystem restoration.

“(B) Use of non-federal funds.—

“(i) In general.—A non-Federal interest that has entered into an agreement with the Secretary pursuant to subparagraph (A) may use non-Federal funds to carry out the feasibility study.

“(ii) Credit.—The Secretary shall credit towards the non-Federal share of the cost of construction of a project for which a feasibility study is carried out under this subsection an amount equal to the portion of the cost of developing the study that would have been the responsibility of the Secretary, if the study were carried out by the Secretary, subject to the conditions that—

“(I) non-Federal funds were used to carry out the activities that would have been the responsibility of the Secretary;
“(II) the Secretary determines that the feasibility study complies with all applicable Federal laws and regulations; and
“(III) the project is authorized by any provision of Federal law enacted after the date on which an agreement is entered into under subparagraph (A).

“(C) Transfer of funds.—

“(i) In general.—After the date on which an agreement is executed pursuant to subparagraph (A), the Secretary may transfer to the non-Federal interest to carry out the feasibility study—

“(I) if applicable, the balance of any unobligated amounts appropriated for the study, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
“(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of the feasibility study.

“(ii) Administration.—The Secretary shall include such provisions as the Secretary determines to be necessary in an agreement under subparagraph (A) to ensure that a non-Federal interest receiving Federal funds under this paragraph—

“(I) has the necessary qualifications to administer those funds; and
“(II) will comply with all applicable Federal laws (including regulations) relating to the use of those funds.

“(D) Notification.—The Secretary shall notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the initiation of each feasibility study under the pilot program.

“(E) Auditing.—The Secretary shall regularly monitor and audit each feasibility study carried out by a non-Federal interest under this section to ensure that the use of any funds transferred under subparagraph (C) are used in compliance with the agreement signed under subparagraph (A).

“(F) Technical assistance.—On the request of a non-Federal interest, the Secretary may provide technical assistance to the non-Federal interest relating to any aspect of the feasibility study, if the non-Federal interest contracts with the Secretary for the technical assistance and compensates the Secretary for the technical assistance.

“(G) Detailed project schedule.—Not later than 180 days after entering into an agreement under subparagraph (A), each non-Federal interest, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule, based on full funding capability, that lists all deadlines for milestones relating to the feasibility study.

“(4) Cost share.—Nothing in this subsection affects the cost-sharing requirement applicable on the day before the date of enactment of this Act [June 10, 2014] to a feasibility study carried out under this subsection.

“(5) Report.—

“(A) In general.—Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report detailing the results of the pilot program carried out under this section, including—

“(i) a description of the progress of the non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (3)(G); and

“(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.

“(B) Update.—Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update of the report described in subparagraph (A).

“(C) Failure to meet deadline.—If the Secretary fails to submit a report by the required deadline under this paragraph, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed explanation of why the deadline was missed and a projected date for submission of the report.

“(6) Administration.—All laws and regulations that would apply to the Secretary if the Secretary were carrying out the feasibility study shall apply to a non-Federal interest carrying out a feasibility study under this subsection.

“(7) Termination of authority.—The authority to commence a feasibility study under this subsection terminates on the date that is 5 years after the date of enactment of this Act [June 10, 2014].

“(8) Authorization of appropriations.—In addition to any amounts appropriated for a specific project, there is authorized to be appropriated to the Secretary to carry out the pilot program under this subsection, including the costs of administration of the Secretary, $25,000,000 for each of fiscal years 2015 through 2019.

“(b) Non-Federal Project Implementation Pilot Program.—

“(1) In general.—Not later than 180 days after the date of enactment of this Act [June 10, 2014], the Secretary [of the Army] shall establish and implement a pilot program to evaluate the cost-effectiveness and project delivery efficiency of allowing non-Federal interests to carry out flood risk management, hurricane and storm damage reduction, coastal harbor and channel inland navigation, and aquatic ecosystem restoration projects.

“(2) Purposes.—The purposes of the pilot program are—

“(A) to identify project delivery and cost-saving alternatives that reduce the backlog of authorized Corps of Engineers projects;

“(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out the design, execution, management, and construction of 1 or more projects; and

“(C) to evaluate alternatives for the decentralization of the project management, design, and construction for authorized Corps of Engineers water resources projects.

“(3) Administration.—

“(A) In general.—In carrying out the pilot program, the Secretary shall—

“(i) identify a total of not more than 15 projects for flood risk management, hurricane and storm damage reduction (including levees, floodwalls, flood control channels, and water control structures), coastal harbor and channels, inland navigation, and aquatic ecosystem restoration that have been authorized for construction prior to the date of enactment of this Act, including—

“(I) not more than 12 projects that—
“(aa)(AA) have received Federal funds prior to the date of enactment of this Act; or
“(BB) for more than 2 consecutive fiscal years, have an unobligated funding balance for that project in the Corps of Engineers construction account; and
“(bb) to the maximum extent practicable, are located in each of the divisions of the Corps of Engineers; and
“(II) not more than 3 projects that have not received Federal funds in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act;

“(ii) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the identification of each project under the pilot program;

“(iii) in collaboration with the non-Federal interest, develop a detailed project management plan for each identified project that outlines the scope, budget, design, and construction resource requirements necessary for the non-Federal interest to execute the project, or a separable element of the project;

“(iv) on the request of the non-Federal interest, enter into a project partnership agreement with the non-Federal interest for the non-Federal interest to provide full project management control for construction of the project, or a separable element of the project, in accordance with plans approved by the Secretary;

“(v) following execution of the project partnership agreement, transfer to the non-Federal interest to carry out construction of the project, or a separable element of the project—

“(I) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
“(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and

“(vi) regularly monitor and audit each project being constructed by a non-Federal interest under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.

“(B) Detailed project schedule.—Not later than 180 days after entering into an agreement under subparagraph (A)(iv), each non-Federal interest, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule, based on estimated funding levels, that lists all deadlines for each milestone in the construction of the project.

“(C) Technical assistance.—On the request of a non-Federal interest, the Secretary may provide technical assistance to the non-Federal interest, if the non-Federal interest contracts with and compensates the Secretary for the technical assistance relating to—

“(i) any study, engineering activity, and design activity for construction carried out by the non-Federal interest under this subsection; and

“(ii) expeditiously obtaining any permits necessary for the project.

“(4) Cost share.—Nothing in this subsection affects the cost-sharing requirement applicable on the day before the date of enactment of this Act [June 10, 2014] to a project carried out under this subsection.

“(5) Report.—

“(A) In general.—Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report detailing the results of the pilot program carried out under this subsection, including—

“(i) a description of the progress of non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (2)(B); and

“(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.

“(B) Update.—Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update of the report described in subparagraph (A).

“(C) Failure to meet deadline.—If the Secretary fails to submit a report by the required deadline under this paragraph, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed explanation of why the deadline was missed and a projected date for submission of the report.

“(6) Administration.—All laws and regulations that would apply to the Secretary if the Secretary were carrying out the project shall apply to a non-Federal interest carrying out a project under this subsection.

“(7) Termination of authority.—The authority to commence a project under this subsection terminates on the date that is 5 years after the date of enactment of this Act [June 10, 2014].

“(8) Authorization of appropriations.—In addition to any amounts appropriated for a specific project, there is authorized to be appropriated to the Secretary to carry out the pilot program under this subsection, including the costs of administration of the Secretary, $25,000,000 for each of fiscal years 2015 through 2019.”

“(b) Purposes.—The purposes of the pilot program established under subsection (a) are—

“(1) to identify cost-saving project delivery alternatives that reduce the backlog of authorized Corps of Engineers projects; and

“(2) to evaluate the technical, financial, and organizational benefits of allowing a non-Federal pilot applicant to carry out and manage the design or construction (or both) of 1 or more of such projects.

“(c) Subsequent Appropriations.—Any activity undertaken under this section is authorized only to the extent specifically provided for in subsequent appropriations Acts.

“(d) Administration.—In carrying out the pilot program established under subsection (a), the Secretary shall—

“(1) identify for inclusion in the program at least 15 projects that are authorized for construction for coastal harbor improvement, channel improvement, inland navigation, flood damage reduction, or hurricane and storm damage reduction;

“(2) notify in writing the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of each project identified under paragraph (1);

“(3) in consultation with the non-Federal pilot applicant associated with each project identified under paragraph (1), develop a detailed project management plan for the project that outlines the scope, financing, budget, design, and construction resource requirements necessary for the non-Federal pilot applicant to execute the project, or a separable element of the project;

“(4) at the request of the non-Federal pilot applicant associated with each project identified under paragraph (1), enter into a project partnership agreement with the non-Federal pilot applicant under which the non-Federal pilot applicant is provided full project management control for the financing, design, or construction (or any combination thereof) of the project, or a separable element of the project, in accordance with plans approved by the Secretary;

“(5) following execution of a project partnership agreement under paragraph (4) and completion of all work under the agreement, issue payment, in accordance with subsection (g), to the relevant non-Federal pilot applicant for that work; and

“(6) regularly monitor and audit each project carried out under the program to ensure that all activities related to the project are carried out in compliance with plans approved by the Secretary and that construction costs are reasonable.

“(e) Selection Criteria.—In identifying projects under subsection (d)(1), the Secretary shall consider the extent to which the project—

“(4) received Federal funds in the past and experienced delays or missed scheduled deadlines;

“(5) has unobligated Corps of Engineers funding balances; and

“(6) has not received Federal funding for recapitalization and modernization since the project was authorized.

“(f) Detailed Project Schedule.—Not later than 180 days after entering into a project partnership agreement under subsection (d)(4), a non-Federal pilot applicant, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule for the relevant project, based on estimated funding levels, that specifies deadlines for each milestone with respect to the project.

“(g) Payment.—Payment to the non-Federal pilot applicant for work completed pursuant to a project partnership agreement under subsection (d)(4) may be made from—

“(1) if applicable, the balance of the unobligated amounts appropriated for the project; and

“(2) other amounts appropriated to the Corps of Engineers, subject to the condition that the total amount transferred to the non-Federal pilot applicant may not exceed the estimate of the Federal share of the cost of construction, including any required design.

“(h) Technical Assistance.—At the request of a non-Federal pilot applicant participating in the pilot program established under subsection (a), the Secretary may provide to the non-Federal pilot applicant, if the non-Federal pilot applicant contracts with and compensates the Secretary, technical assistance with respect to—

“(1) a study, engineering activity, or design activity related to a project carried out by the non-Federal pilot applicant under the program; and

“(2) obtaining permits necessary for such a project.

“(i) Identification of Impediments.—

“(1) In general.—The Secretary shall—

“(A) except as provided in paragraph (2), identify any procedural requirements under the authority of the Secretary that impede greater use of public-private partnerships and private investment in water resources development projects;

“(B) develop and implement, on a project-by-project basis, procedures and approaches that—

“(i) address such impediments; and

“(ii) protect the public interest and any public investment in water resources development projects that involve public-private partnerships or private investment in water resources development projects; and

“(C) not later than 1 year after the date of enactment of this section [June 10, 2014], issue rules to carry out the procedures and approaches developed under subparagraph (B).

“(2) Rule of construction.—Nothing in this section allows the Secretary to waive any requirement under—

“(A) sections
3141 through
3148 andsections
3701 through
3708 of title
40, United States Code;

“(1) In general.—Before entering into a project partnership agreement under subsection (d)(4), the Secretary shall conduct an assessment of whether, and provide justification in writing to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives that, the proposed agreement provides better public and financial benefits than a similar transaction using public funding or financing.

“(2) Requirements.—An assessment under paragraph (1) shall—

“(A) be completed in a period of not more than 90 days;

“(B) take into consideration any supporting materials and data submitted by the relevant non-Federal pilot applicant and other stakeholders; and

“(C) determine whether the proposed project partnership agreement is in the public interest by determining whether the agreement will provide public and financial benefits, including expedited project delivery and savings for taxpayers.

“(k) Non-Federal Funding.—The non-Federal pilot applicant may finance the non-Federal share of a project carried out under the pilot program established under subsection (a).

“(l) Applicability of Federal Law.—Any provision of Federal law that would apply to the Secretary if the Secretary were carrying out a project shall apply to a non-Federal pilot applicant carrying out a project under this section.

“(m) Cost Share.—Nothing in this section affects a cost-sharing requirement under Federal law that is applicable to a project carried out under the pilot program established under subsection (a).

“(n) Report.—Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report describing the results of the pilot program established under subsection (a), including any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.

“(a) In General.—In evaluating potential improvements for water control management activities and consolidation of water control management centers, the Secretary may consider a regionalized water control management plan but may not implement such a plan until the date on which a report is submitted under subsection (b).

“(b) Report.—Not later than 180 days after the date of enactment of this Act [Aug. 17, 1999], the Secretary shall submit to the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives and the Committee on Environment and Public Works and the Committee on Appropriations of the Senate a report containing—

“(1) a description of the primary objectives of streamlining water control management activities;

“(2) a description of the benefits provided by streamlining water control management activities through consolidation of centers for those activities;

“(3) a determination whether the benefits to users of establishing regional water control management centers will be retained in each district office of the Corps of Engineers that does not have a regional center;

“(4) a determination whether users of regional centers will receive a higher level of benefits from streamlining water control management activities; and

“(5) a list of the members of Congress who represent a district that includes a water control management center that is to be eliminated under a proposed regionalized plan.”

“(a) In General.—It is the sense of Congress that, to the extent practicable, all equipment and products purchased with funds made available under this Act [see Tables for classification] should be American made.

“(b) Notice to Recipients of Assistance.—In providing financial assistance under this Act, the Secretary, to the greatest extent practicable, shall provide to each recipient of the assistance a notice describing the statement made in subsection (a).”

“(a) Purchase of American-Made Equipment and Products.—It is the sense of Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this Act [see Tables for classification] should be American-made.

“(b) Notice to Recipients of Assistance.—In providing financial assistance under this Act, the Secretary, to the greatest extent practicable, shall provide to each recipient of the assistance a notice describing the statement made in subsection (a).”

Budget Act Requirements

Pub. L. 99–662, title IX, § 948,Nov. 17, 1986, 100 Stat. 4201, provided that: “Any spending authority under this Act [see Short Title note above] shall be effective only to such extent and in such amounts as are provided in appropriation Acts. For purposes of this Act, the term ‘spending authority’ has the meaning provided in section 401(c)(2) of the Congressional Budget Act of 1974 [2 U.S.C. 651(c)(2)], except that such term does not include spending authority for which an exception is made under section 401(d) of such Act.”